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Electronically Filed
Supreme Court
SCWC-28948
22-APR-2013
03:45 PM
NO. 28948
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI‘I
CIVIL NO. 03-1-2557
PACIFIC LIGHTNET, INC.
Plaintiff-Appellant/
Cross-Appellee,
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vs.
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TIME WARNER TELECOM, INC., and
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TIME WARNER TELECOM OF HAWAI‘I )
L.P.
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Defendants-Appellees
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Cross-Appellants.
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____________________________________ )
No. 28948 - APPEAL FROM:
1) Final Judgment, Filed On December 12,
2007
2) Order Granting Defendants Time Warner
Telecom Inc. And Time Warner Telecom Of
Hawai‘i L.P.’s (“TWTC”) Motion For Partial
Summary Judgment, Filed March 30, 2007,
Filed On June 15, 2007
(caption continued on next page(s))
PETITIONER WAVECOM SOLUTIONS CORPORATION’S
APPLICATION FOR WRIT OF CERTIORARI
APPENDIX “A”
CERTIFICATE OF SERVICE
BRONSTER HOSHIBATA
A Law Corporation
MARGERY S. BRONSTER, #4750
REX Y. FUJICHAKU, #7198
1003 Bishop Street, Suite 2300
Honolulu, Hawai‘i 96813
Telephone:
(808) 524-5644
Facsimile:
(808) 599-1881
Attorneys for Petitioner WAVECOM
SOLUTIONS CORPORATION (fka
PACIFIC LIGHTNET, INC.)
CIVIL NO. 05-1-0428
Cross-Appellee,
vs.
ALVEN KAMP, TIME WARNER
TELECOM OF HAWAI‘I L.P., a Delaware
limited partnership,
Defendants-Appellees/
Cross-Appellants
and
JOHN DOES 1-10, JANE DOES 1-10,
DOE CORPORATIONS 1-10, OR
OTHER ENTITIES, 1-10,
Defendants.
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3) Order Denying Plaintiff Pacific LightNet,
Inc’s (“PLNI”) Motion For Partial Summary
Judgment On Cable Maintenance Contract,
Filed March 30, 2007, Filed On June 15,
2007
4) Order Granting Defendants TWTC’s
Motion To Dismiss For Lack Of Subject
Matter Jurisdiction Based On The Primary
Jurisdiction Of The Public Utilities
Commission, Filed September 5, 2007, Filed
On October 23, 2007
5) Order Denying Plaintiff PLNI’s Motion
For Reconsideration Of Order Granting
Defendants TWTC’s Motion To Dismiss For
Lack Of Subject Matter Jurisdiction Based
On The Primary Jurisdiction Of The Public
Utilities Commission Filed October 23,
2007, Filed On December 4, 2007
1) Final Judgment, filed on December 12,
2007 and Special Verdict Form, filed on
September 13, 2007.
2) Oral decision of the Court, excluding
relevant evidence of settlement discussions
pursuant to Hawai‘i Rules of Evidence
(“HRE”) Rule 408, see Transcript hearing of
September 4, 2007, September 7, 2007 and
September 10, 2007.
3) Order Granting In Part and Denying in
Part Plaintiff PLNI’s Motion to Strike
Defendants TWTC’s Answer to PLNI’s
Verified Complaint for Declaratory
Judgment and Injunctive Relief in Civil No.
03-1-2557-12 (EEH), Filed October 30,
2003, Filed August 30, 2007, filed on
October 25, 2007.
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____________________________________ )
4) Oral decision of the Court, refusing
TWTC’s proposed jury instructions
regarding the law of the tariffs, see
Transcript hearing of September 11, 2007.
TWTC’s proposed special verdict form, see
6) Oral decision of the Court, Denying
TWTC’s Oral Motion for Judgment as a
Matter of Law Pursuant to Hawai‘i Rules of
Civil Procedure (“HRCP”) Rule 50 and
Renewed Motion for Judgment as a Matter of
Law Pursuant to HRCP Rule 50, see
(7) Order Denying Defendants TWTC’s
Motion for Judgment as a Matter of Law or
Alternatively for New Trial, Filed December
20, 2007, filed on March 7, 2008.
(8) Minute Order, dated March 14, 2008,
Granting in Part and Denying in Part
Defendants TWTC’s Motion for Attorneys’
Fees and Costs, filed December 20, 2007, to
the extent TWTC’s request in its motion was
denied.
(9) Order Granting in Part and Denying in
Part Defendants TWTC’s Motion for
Attorneys’ Fees and Costs, filed December
20, 2007, filed April 1, 2008, to the extent
TWTC’s request in its motion was denied.
Cross Appeal from the Order Granting in
Part and Denying in Part Defendants
TWTC’s Motion for Attorneys’ Fees and
Costs, filed December 20, 2007, filed April
1, 2008.
FIRST CIRCUIT COURT
HON. EDEN ELIZABETH HIFO
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NO. 28948
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI‘I
CIVIL NO. 03-1-2557
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Cross-Appellee,
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vs.
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TIME WARNER TELECOM OF HAWAI‘I )
L.P.
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Cross-Appellants.
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_____________________________________ )
CIVIL NO. 05-1-0428
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Cross-Appellee,
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vs.
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TELECOM OF HAWAI‘I L.P., a Delaware )
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Cross-Appellants
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and
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Defendants.
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2007
Inc.’s (“PLNI”) Motion For Partial Summary
2007
On October 23, 2007
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September 13, 2007
(Caption continued on next page)
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pursuant to Hawaii Rules of Evidence
September 10, 2007
October 25, 2007
Transcript hearing of September 11, 2007
Matter of Law Pursuant to Hawaii Rules of
20, 2007, filed on March 7, 2008
denied
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TWTC’s request in its motion was denied
1, 2008
FIRST CIRCUIT COURT
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PETITIONER WAVECOM SOLUTIONS CORPORATION’S
APPLICATION FOR WRIT OF CERTIORARI
Pursuant to HRAP Rule 40.1, Plaintiff-Appellant/Cross-Appellee Wavecom Solutions
Corporation, formerly known as Pacific LightNet, Inc. (“PLNI”), by and through its attorneys
Bronster Hoshibata, submits this Application for Writ of Certiorari from the Memorandum
Opinion by the Intermediate Court of Appeals (“ICA”) in Consolidated Appeal Nos. 28948 and
29105. The ICA’s Opinion is attached as Appendix A.
I.
CONCISE STATEMENT OF QUESTIONS PRESENTED FOR DECISION.
1.
Did the ICA err in affirming the circuit court’s application of the primary
jurisdiction doctrine post-trial in deference to the state Public Utilities Commission (“PUC”),
where the PUC’s statute does not place “special competence” over billing disputes to the agency
and the jury was capable of rendering a special verdict based on the factual evidence at trial?
2.
Did the ICA err in ruling that the jury’s verdict must be vacated because it
violated the filed rate doctrine, where the jury was instructed on the terms and effect of the tariff
by the circuit court, and the rates, terms and reasonableness of the tariff were never challenged?
II.
STATEMENT OF PRIOR PROCEEDINGS.
On December 30, 2003, PLNI filed a Verified Complaint for Declaratory Judgment and
Injunctive Relief against Defendant-Appellees/Cross-Appellants Time Warner Telecom, Inc. and
Time Warner Telecom of Hawai‘i, L.P. (collectively “TWTC”) in Civil No. 03-1-2557-12 (EEH)
(“2003 Complaint”). Record on Appeal (“ROA”) Vol. 1, pp. 1-15. In the 2003 Complaint,
PLNI alleged, inter alia, that TWTC misbilled PLNI for certain telephone call termination
services, which were called “Feature Group D” services. ROA Vol. 1, pp. 7-12.
TWTC failed to answer the 2003 Complaint until August 30, 2007, just days before jury
trial was to commence on the Feature Group D claims (the other claims being resolved in
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summary judgment). ROA Vol. 9, pp. 149-158. For the first time, TWTC asserted a number of
affirmative defenses, including the primary jurisdiction doctrine. ROA Vol. 9, pp. 149-158. The
circuit court allowed TWTC to untimely file an answer, but struck all affirmative defenses,
except for the defense of subject matter jurisdiction. ROA Vol. 11, pp. 258-260.
On September 4, 2007, trial began on the Feature Group D claims. See Transcript of
Proceedings (“Tr.”), Sept. 4, 2007 (p.m.), at p. 33. The next day, on September 5, 2007, TWTC
filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction Based Upon the Primary
Jurisdiction of the Public Utilities Commission (“Motion to Dismiss”), which sought to dismiss
the Feature Group D claims. ROA Vol. 9, pp. 295-455. Instead of staying the trial and deciding
the Motion to Dismiss, the circuit court scheduled the motion to be heard after the trial. See Tr.,
Sept. 4, 2007 (p.m.), at pp. 75-76.
The Feature Group D claims were tried before a jury on September 4, 6, 7, 10, and 11,
2007. ROA Vol. 11, p. 418. On September 13, 2007, the jury returned a verdict in favor of
PLNI. ROA Vol. 10, pp. 165-167. However, on October 23, 2007, based on the primary
jurisdiction doctrine, the circuit court granted the Motion to Dismiss, stayed enforcement of the
jury’s verdict, and dismissed the Feature Group D claims. ROA Vol. 11, pp. 249-251. On
December 12, 2007, the circuit court entered the Final Judgment. ROA Vol. 11, pp. 414-419.
On January 11, 2007, PLNI timely filed its Notice of Appeal in Appeal No. 28948,
challenging, inter alia, the circuit court’s order dismissing PLNI’s Feature Group D claims
pursuant to the primary jurisdiction doctrine. ROA Vol. 13, pp. 1-22.1 On July 23, 2008, the
ICA consolidated Appeal No. 28948 with Appeal No. 29105, which pertained to TWTC’s appeal
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PLNI also appealed the circuit court’s orders regarding the so-called “Cable
Maintenance” claims contained in PLNI’s Verified Complaint for Injunctive Relief and Damages
filed March 11, 2005, in Civil No. 05-1-0429-03 (VSM).
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and PLNI’s cross-appeal of certain issues raised in the trial and in certain post-judgment
motions, including an order granting TWTC an award of attorneys’ fees and costs.
On June 22, 2011, the ICA heard oral arguments. On January 25, 2013, the ICA issued
its Memorandum Opinion (“Opinion”), affirming the circuit court’s application of the primary
jurisdiction doctrine and its dismissal of the Feature Group D claims. Opinion at pp. 16, 21. In
addition, the ICA vacated the jury verdict as contrary to the filed rate doctrine and consequently
vacated the circuit court’s stay of enforcement of the verdict. Id. at p. 18. The ICA also reversed
the circuit court’s summary judgment rulings on the Cable Maintenance claims, and deemed the
circuit court’s order awarding attorneys’ fees and costs to TWTC a nullity by operation of HRAP
4(a)(3). Id. at pp. 28, 30.2 The case was remanded to the circuit court for further proceedings
consistent with the Opinion. Id. at p. 31. On February 21, 2013, the ICA issued its Judgment on
Appeal in accordance with the Opinion.
III.
STATEMENT OF THE CASE.
PLNI and TWTC are telecommunications carriers operating in Hawai‘i. ROA Vol. 5, p.
29. The Feature Group D claims involve billing disputes for telephone call termination services
which arise when a customer of one carrier requires connection to a customer of another carrier.
Tr., Sept. 4, 2007 (p.m.), at p. 43. Carriers (such as PLNI and TWTC) are allowed to charge fees
to one another as set by a tariff approved by the PUC. Id. at pp. 38-39.
PLNI acquired in bankruptcy certain assets of a defunct telecommunications carrier, GST
Telecommunications Inc. and its affiliates (collectively “GST”). ROA Vol. 5, pp. 33-208. A
credit memo showed $327,714.03 in Feature Group D charges were owed by TWTC in GST’s
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PLNI does not seek certiorari on these portions of the ICA Opinion.
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favor. ROA Vol. 12, at p. 402; Trial Exhibits D-16, D-22. PLNI asserted that it acquired the
right to this $327,714.03 credit from GST in bankruptcy. Tr., Sept. 4, 2007 (p.m.) at p. 24.
PLNI also asserted it was erroneously billed by TWTC for ongoing Feature Group D
services which PLNI disputed receiving from TWTC. Id. at p. 66. PLNI moved into evidence a
series of TWTC invoices for Feature Group D services allegedly provided to PLNI, and a series
of “Billing Dispute Submissions” that PLNI submitted to TWTC disputing certain Feature Group
D charges by TWTC. ROA Vol. 11, pp. 290-323. PLNI sought a credit from TWTC for these
disputed amounts, which would be deducted from legitimate Feature Group D charges.
After trial on the Feature Group D claims, the jury found that PLNI proved a breach of
contract regarding the $327,714.03 GST credit, and awarded PLNI that amount in damages.
Opinion at p. 7. The jury further found that PLNI proved a breach of contract regarding the
ongoing Feature Group D billing disputes, awarding $1 in nominal damages, and found that the
pending Feature Group D bills should be reduced in the amount of $118,109.58. Id.
IV.
ARGUMENT.
A.
THE ICA ERRED IN AFFIRMING THE APPLICATION OF THE
PRIMARY JURISDICTION DOCTRINE WHERE THE PUC HAS NO
SPECIAL COMPETENCE IN BILLING DISPUTES.
The ICA gravely erred in its de novo review of the circuit court’s primary jurisdiction
analysis by improperly expanding the scope of the PUC’s regulatory mandate. In essence, the
ICA ruled that the PUC’s authorizing statute, HRS chapter 269, requires that the agency decide
all billing disputes between a telephone carrier and its customers. In reality, the plain language
of the statute shows that the Legislature did not intend the PUC to be the obligatory forum to
resolve billing disputes. The impracticability of forcing all customers to seek recourse at the
PUC for billing disputes, and of saddling the PUC with such matters, also shows that the
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Legislature could not have intended such a result. Instead, the statute envisions the agency to be
an alternative venue for dispute resolution, and not indispensable where, as was the
unquestionable case here, disputed facts can be sorted out and decided by a lay jury and do not
require the special competence of the PUC.
If left standing, the ICA’s Opinion will have a pernicious effect on all future billing
disputes between a telecommunications carrier and its customer (whether a fellow carrier or a
lone individual), where the slightest disputed technical issue will automatically require
proceedings before the PUC—an agency already overburdened by its actual statutory remit.
1. The PUC Statute and Rules Do Not Require the Commission to
Determine All Billing Disputes.
Under the primary jurisdiction doctrine, the circuit court cedes its concurrent subject
matter jurisdiction when an administrative agency has “special competence” over a dispute:
Primary jurisdiction applies when a claim is originally cognizable in the courts,
and comes into play whenever enforcement of the claim requires the resolution of
issues which, under a regulatory scheme, have been placed within the special
competence of an administrative body. … [I]in cases raising issues of fact not
within the conventional experience of judges or cases requiring the exercise of
administrative discretion, agencies created by the legislature for regulating the
subject matter should not be passed over.
Kona Old Hawaiian Trials Group v. Lyman, 69 Haw. 81, 93, 734 P.2d 161, 168-69 (1987)
(citations, ellipses, brackets and quotation marks omitted).
However, this Court has clarified that the primary jurisdiction doctrine does not always
arise when an agency has “special competence” in the issues in dispute. Id. at 93, 734 P.2d at
168. The doctrine only comes into play where “uniformity and consistency in the regulation of
business entrusted to a particular agency” are required, id., or where “technical matters calling
for the special competence of the administrative expert” are involved:
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The primary jurisdiction doctrine is designed to promote uniformity and
consistency in the regulatory process. The doctrine does not apply where a pure
question of law is at issue and technical matters calling for the special competence
of the administrative expert are not involved. Primary jurisdiction also does not
apply where the agency has already rendered its views.
Aged Hawaiians Hawaiian Homes Comm’n, 78 Hawaiʻi 192, 202, 891 P.2d 279, 289 (1995)
(citations omitted; emphasis added); see also, Kellerman v. MCI Telecomm. Corp., 493 N.E.2d
1045, 1052 (Ill. 1986) (stating “when an agency’s technical expertise is not likely to be helpful,
or there is no need for uniform administrative standards, courts should not relinquish their
authority over a matter to an agency”).
Thus, for example, in Hawaii Blind Vendors Ass’n v. Dep’t of Human Servs., certain
beneficiaries of a program created to assure that priority was given to the blind and visually
impaired in vendor operations in public buildings sued, claiming violations of the program. 71
Haw. 367, 370, 791 P.2d 1261, 1263 (1990), overruled on other grounds, Tamashiro v. Dep’t of
Human Servs., 112 Hawai‘i 388, 146 P.3d 103 (2006). In applying the primary jurisdiction
doctrine, the court cited to a statute that specifically gave the Department of Human Services
(“DHS”) responsibility for adopting rules and implementing the program, including specific
rules governing evidentiary hearings and arbitration of vendor complaints. Id. at 371 n.3, 791
P.2d at 1264 n.3. Consequently, the court concluded that the DHS was the appropriate forum for
the initial determination of the issues under the doctrine. Id. at 371, 791 P.2d at 1264.
Likewise, in Chun v. Employees’ Retirement Sys., 73 Haw. 9, 13, 828 P.2d 260, 262
(1992), the court applied the primary jurisdiction doctrine where the statute specifically
empowered the Employees’ Retirement System (“ERS”) to promulgate rules relating to the
“years of service” used to calculate retirement benefits that were the crux of the class action
lawsuit. “The Legislature has clearly and specifically delegated the authority to determine the
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amount of service that is equivalent to a ‘year of service’ to the ERS board of trustees.” Id. at
13, 828 P.2d at 262. Thus, the court held that the considerations of “uniformity and consistency”
called for suspension of the lawsuit before the court. Id. at 13, 828 P.2d at 262.
Similarly, in Kona Old, the court ruled that an environmental group which sought judicial
review of the county planning director’s issuance of a special management area minor permit
could not sidestep the administrative review by the county board of appeals of the director’s
action by seeking judicial review by the circuit court. Kona Old, 69 Haw. at 93, 734 P.2d at 169.
The statute directed that “[e]ach county authority shall provide specific procedures consistent
with this part for the issuance of … special management area minor permits[.]” Id. at 89 n.7, 734
P.2d at 166 n.7, quoting HRS § 205A-30 (1985). Moreover, the county charter provided that,
“The board shall hear and determine all appeals from the actions of the planning director and
planning commission.” Id. at 91 n.11, 734 P.2d at 167 n.11 (emphasis in original). Given the
specific statutory provisions, the court found that “the request for judicial intervention in the
administrative process should not have preceded the resolution by the Board of Appeals of the
question of whether the planning director's action … was proper.” Id. at 91, 734 P.2d at 169.
In contrast to the specific statutory mandates in Hawaii Blind Vendors, Chun, and Kona
Old, there is no specific statutory mandate that directs that the PUC must handle billing disputes
which may arise between a carrier and its customers. While the ICA relied on a number of
sections in the PUC’s statute, HRS chapter 269, to support its conclusion that “the issues
involved in resolving the Feature Group D claims have been placed within the special
competence of the PUC,” Opinion at p. 13, upon closer examination, they are unavailing.
First, the ICA cited to section 269-6, which acknowledges that the PUC has “general
supervision” over all public utilities; section 269-7, which authorizes the PUC to examine into
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the condition of a public utility; and section 269-15, which permits the PUC to institute
proceedings to enforce the chapter. Id. at 13-14. While these provisions provide the PUC with
broad supervisory authority over a public utility’s’ overall operations and activities, they do not
lend support to the proposition that the agency must be involved in each billing dispute involving
a utility and its customers that does not require the special competence of the PUC.
Moreover, while section 269-37 provides that the PUC will ensure that carriers are
“compensated on a fair basis for termination of telecommunications services on each other’s
networks,” this provision merely ensures that the rates charged by a carrier under a compensation
agreement or tariff are fair. HRS § 269-37. However, by its own language, the statute does not
apply to resolving disputes arising from the routine billing for termination services performed
pursuant to a tariff already approved by the PUC. Id. The same analysis applies to HAR § 6-8051, which provides that “[t]elecommunications carriers shall reciprocally compensate each other
for the costs associated with transporting and terminating telecommunications traffics on their
respective networks.” The rule does not require or imply that the PUC must resolve every (or
any) billing dispute which may arise from the setting of termination service charges.
The ICA’s holding is likewise not supported by the PUC’s administrative rule which
allows, but do not require, a customer to file a complaint with the agency if a billing dispute
arises with a carrier. HAR § 6-80-102, which does not contain any specific dispute resolution
rules or process akin to those in Hawaii Blind Vendors, Chun, and Kona Old, provides:
Billing disputes. (a) When a dispute arises between a customer and a
telecommunications carrier regarding any bill, the carrier may require the
customer to pay the undisputed portion of the bill. The carrier shall conduct an
appropriate investigation of the disputed charge or charges and shall provide a
report of the investigation to the customer. Where the dispute is not reconciled,
the carrier shall advise the customer that the customer has the right to file a
complaint with the commission regarding the dispute. (emphasis added).
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The “complaint” process under HAR § 6-80-102 is expressly optional, and does not limit the
disgruntled customer’s ability to seek court action. Id.
In sum, none of the PUC’s statutory authority requires that the agency resolve a billing
dispute where the PUC’s specialized expertise is unnecessary to resolve the dispute. For the ICA
to require a disputed billing claim to first be presented to the PUC wastes the parties’ resources,
needlessly burdens customers, unnecessarily prolongs the amount of time to resolve the dispute,
and, as here, creates the ability for a party (or the court) to unfairly vacate a verdict, even though
the finder of fact had determined all disputed factual issues without the input of the PUC.
Nothing in the PUC’s authorizing statute or administrative rules calls for such a result.
2. The Factual Issues Underlying PLNI’s Billing Dispute Were Resolved By
the Jury Without the Need for the ‘Technical Expertise’ of the PUC.
It is well established that disputes which involve sums due under a tariff approved by the
PUC—and which do not modify or attack the reasonableness of the tariff itself—do not implicate
the primary jurisdiction doctrine. “Enforcement of a tariff is within the ordinary experience and
expertise of courts because it requires no more than application of traditional contract law
principles.” Advamtel, LLC v. AT&T Corp., 105 F.Supp.2d 507, 512 (E.D. Va. 2000).
Unlike the determination of the reasonableness of the tariff rate, the doctrine of
primary jurisdiction does not apply to an action seeking the enforcement of an
established tariff. Because a tariff is essentially an offer to contract, such an
action simply one for the enforcement of a contract. As such, enforcement of
a tariff to collect amounts due under it is well within the ordinary
competence of courts.
Id. at 511 (citation omitted) (emphasis added). See also, Nat’l Comm. Ass’n, Inc. v. AT&T Co.,
46 F.3d 220, 223 (2nd Cir. 1995) (holding “primary jurisdiction does not apply to cases involving
the enforcement of a tariff, as opposed to a challenge to the reasonableness of a tariff”); Crancer
v. Lowden, 315 U.S. 631, 632, 635 (1942) (refusing to refer a suit to recover freight charges to
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an administrative agency, stating “[i]t remained to the railroad only to collect the rates for which
the tariff called and for the District Court only to see that the railroad did collect them”).
In this case, PLNI sought to enforce a credit for fees paid by its predecessor, GST, and to
invalidate erroneous invoices in which TWTC charged PLNI for services which PLNI did not
receive. The Feature Group D claims are simply billing disputes, and the disputed factual issues
were not beyond the ken of the lay jury. While the ICA characterized the Feature Group D
claims as “not simple billing or accounting disputes, but must be resolved by a review of [call
detail records] and other technical evidence,” Opinion at p. 13, the undisputed fact is that the jury
heard testimony, reviewed the call records admitted to evidence, made credibility determinations,
and rendered a special verdict based upon its weighing of the documentary evidence and
testimony. These finding were made by the jury without the “specialized expertise” of the PUC.
The ICA also failed to account for the provision in the tariff that places the legal
obligation on TWTC to “design and determine the routing of Switched Access Service,” ROA
Vol. 12, p. 263, thus obviating the need for a searching review of technical records. The jury
may have correctly found that TWTC did not rebut the consequence that TWTC should be held
responsible for any misrouting and improper termination charges.
Unlike the statutes in Hawaii Blind Vendors, Chun and Kona Old, HRS chapter 269 does
not specifically direct the PUC to establish procedures to decide all billing disputes which may
arise under the tariff. The collection of amounts due under an established tariff, moreover, does
not require the type “uniformity and consistency in the regulation of the business” that is the
hallmark of the primary jurisdiction doctrine. Kona Old, 69 Haw. at 93, 734 P.2d at 169. PLNI
never challenged the reasonableness of Feature Group D services under the filed tariff, nor did it
seek to change the rates that were legitimately charged to GST or itself. As such, the
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interpretation of technical tariff terms was not required, and the PUC’s expertise was not
necessary. Under such circumstances, the circuit court was not justified in dismissing the case
based on primary jurisdiction, nor was the ICA correct in affirming such an erroneous decision.
B.
THE ICA ERRED IN VACATING THE VERDICT, GIVEN THAT THE
FILE RATE DOCTRINE DID NOT APPLY BECAUSE THE
REASONABLENESS OF THE TARIFF WAS NOT CHALLENGED.
The ICA also erred in vacating the verdict. The ICA justified the vacateur because
“TWTC was entitled to assert under the tariffs that certain portions of the Feature Group D
claims were barred under the 120-day requirement. Because TWTC was precluded from having
the jury consider the 120-day limit, the jury verdict violates the filed-rate doctrine and it must be
vacated.” Opinion at p. 18. The ICA’s application of the filed rate doctrine is at odds with this
Court’s prior decisions on the doctrine and the facts of the trial.
The filed rate doctrine “essentially prohibits a regulated entity from charging rates for its
services that differ from the rates filed with the appropriate federal regulatory agency.”
Balthazar v. Verizon Hawaii, Inc., 109 Hawai‘i 69, 72, 123 P.3d 194, 197 (2005) (citation
omitted). However, this Court has recognized that the filed rate doctrine does not always apply
whenever tariffs are implicated. “[T]he filed rate doctrine does not necessarily pose a bar to
claims that do not challenge the reasonableness of rates or practices in a filed tariff.” Id. at 81,
123 P.3d at 206 (citation omitted). Significantly, the filed rate doctrine also does not bar claims
where “the plaintiffs … paid the filed rate but arguably did not receive a benefit or service in
exchange for payment.” Id. (citation omitted). As the ICA recognized, that scenario is exactly
the case here. See Opinion at p. 12-13 (acknowledging “the Feature Group D claims must be
based on a determination that PLNI and GST did not receive services for which they were billed
by TWTC.”). The ICA gravely erred by concluding that the filed rate doctrine applied.
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Even if the filed rate doctrine applies to this collection matter, the circuit court had ample
power to rule on the enforcement of the tariff, as “it is established that the filed-rate doctrine
does not preclude courts from interpreting the provisions of a tariff and enforcing that tariff[.]”
In re Waikoloa Sanitary Sewer Co., Inc., 109 Hawai‘i 263, 272, 125 P.3d 484, 493 (2006)
(citation and quotation marks omitted). Thus, under the doctrine, the circuit court, and the jury
as trier of fact, could and in fact did correctly interpret and enforce the tariff.
Contrary to the ICA’s reason for vacating the verdict, there was no danger that the jury
was unaware of the 120-day provision in the tariff. The time limit is in the tariff itself, which
was admitted to evidence as Trial Exhibit D-3. The tariff states: “Objections to billed charges
must be reported to the Company within 120 days of receipt of billing. Any claim not filed
within this time period shall be deemed waived.” ROA Vol. 12, p. 259. The circuit court
properly instructed the jury that the tariff is the law. Tr., Sept. 11, 2007, p. 44; ROA Vol. 10, p.
155. Further, while the ICA assumes that the jury did not apply the 120-day limit, this position
fails to acknowledge that it did not award the full offset amount of $139,409.58 sought by PLNI.
Tr., Sept. 11, 2007, at p. 65. Instead, the offset of $118,109.08 shows that the jury may have
discounted the amount sought based on the 120-day rule in the tariff. The verdict should stand.
V.
CONCLUSION
PLNI respectfully asks that this Court grant the Writ of Certiorari, reverse the decision of
the ICA as to the issues raised in this Writ, and remand the case for further proceedings.
Dated: Honolulu, Hawai‘i April 22, 2013.
/S/ REX Y. FUJICHAKU
MARGERY S. BRONSTER
REX Y. FUJICHAKU
Attorneys for Petitioner WAVECOM SOLUTIONS
CORPORATION (FKA PACIFIC LIGHTNET, INC.)
12
Electronically Filed
Intermediate Court of Appeals
28948
25-JAN-2013
09:27 AM
APPENDIX "A"
NO. 28948
IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAIÌ
CIVIL NO. 03-1-2557
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Cross-Appellee,
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vs.
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TIME WARNER TELECOM OF HAWAIÌ )
L.P.
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Cross-Appellants.
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_____________________________________ )
CIVIL NO. 05-1-0428
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Cross-Appellee,
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vs.
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TELECOM OF HAWAIÌ L.P., a Delaware )
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Cross-Appellants
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and
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Defendants.
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2007
Inc’s (“PLNI”) Motion For Partial Summary
2007
On October 23, 2007
September 13, 2007
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pursuant to Hawaii Rules of Evidence
September 10, 2007
October 25, 2007
Matter of Law Pursuant to Hawaii Rules of
20, 2007, filed on March 7, 2008
denied
2
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____________________________________ )
TWTC’s request in its motion was denied
1, 2008
FIRST CIRCUIT COURT
CERTIFICATE OF SERVICE
I hereby certify that a copy the foregoing document was served upon the following
parties as indicated below:
Served Electronically through JEFS:
J. D. K. ING
[email protected]
BRIAN A. KANG
[email protected]
EMI L. M. KAIMULOA
[email protected]
Watanabe Ing
First Hawaiian Center
999 Bishop Street, 23rd Floor
Honolulu, Hawai‘i 96813
Attorneys for Defendants-Appellees/Cross-Appellants
TIME WARNER TELECOM, INC. and
TIME WARNER TELECOM OF HAWAII L.P.
Dated: Honolulu, Hawai‘i April 22, 2013.
/S/ REX Y. FUJICHAKU
MARGERY S. BRONSTER
REX Y. FUJICHAKU
Attorneys for Petitioner WAVECOM SOLUTIONS
CORPORATION (FKA PACIFIC LIGHTNET,
INC.)
3

here - Record on Appeal

Transcription

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